THE COURT HELD THAT A VICTIM'S CONSENT TO A GYNECOLOGICAL EXAMINATION DOES NOT PRECLUDE A FINDING OF OUTRAGING MODESTY IF THE DOCTOR'S ACTIONS ARE DEROGATORY AND DISRESPECTFUL TOWARDS THE VICTIM'S DIGNITY.

SANKAR ACHARYYA, J.

1. This revisional application has been filed by the petitioner for setting aside the order dated 03.07.2013 passed by learned Additional Chief Judicial Magistrate, Bidhannagar in G.R. Case No. 581 of 2013 arising out of Bidhannagar police station case No. 140 of 2013 dated 17.06.2013 under Section 354 of the Indian Penal Code (in short I.P.C.) and for quashing the proceedings of G.R. Case No. 140 of 2013. In the said order dated 03.07.2013 (hereinafter called as impugned order) learned Magistrate took cognizance of the offence punishable under Section 354, I.P.C. against the accused (petitioner herein).

2. Inter alia, the petitioner has contended that the impugned order is an abuse of process of justice as the learned Magistrate took cognizance of the offence under Section 354, I.P.C. without application of judicial mind although the ingredients of said section were not established on the materials brought on record by the investigating police officer with the charge-sheet in the proceedings of G.R. 140 of 2013.

3. I have gone through the copies of first information report (in short FIR), charge-sheet, hand sketch map with index of the place of occurrence, statements of two witnesses who are cousin sister and mother of the victim as well as informant recorded under Section 161 of the Code of Criminal Procedure (in short Cr.P.C) recorded by the investigating police officer, statement of the victim lady recorded by learned Judicial Magistrate under Section 164, Cr.P.C. and the certified copy of the impugned order dated 03.07.2013 which have been annexed to the revisional application.

4. At the time of hearing, learned advocate for the petitioner submitted that the petitioner is a famous gynaecologist and the allegations brought against him do not constitute an offence punishable under Section 354, I.P.C. He cited the decision of the Hon’ble Supreme Court in State of Haryana and Others Vs. Bhajan Lal and Others reported in 1992 SCC (Cri) 426. He further argued that acceding consent for her gynaecological examination the alleged victim allowed the accused petitioner for her examination and the accused petitioner examined her which cannot be considered as outraging the modesty of the alleged victim by a prudent man.

5. Learned advocate for the state has argued that the materials placed before learned Additional Judicial Magistrate are sufficient for taking cognizance of the offence under Section 354, I.P.C. and no miscarriage of justice has been caused due to passing the impugned order.

6. On 17.06.2013 a written information was lodged at Bidhannagar police station by the informant alleging that on 15.06.2013 she went to the petitioner gynaecologist for consultation. At the time of her examination the petitioner made physically inappropriate and indecent actions towards her which was derogatory and disrespectful towards a woman’s dignity and definitely was unnecessary for her examination and thereby the petitioner outraged her modesty. The cousin sister and the mother of the victim lady corroborated her in their statements recorded under Section 161, Cr.P.C. The victim lady stated a vivid description of the alleged incident before learned Judicial Magistrate at the time of recording her statement under Section 164, Cr.P.C. She stated that in the absence of any lady attendant the accompanying cousin sister of the lady expressed her intention to remain present at the place and time of victim’s examination but the petitioner doctor told her presence was unnecessary. The bed of the patient was within screen wall. Petitioner removed the upper garments and trouser of the victim and started bad pressure on her belly and touched her breast and nipple. Then he pressed both the breasts and enquired whether she felt pain or not. Getting negative answer he enquired about her extra hair growth and removing her trouser placed his hand on her female genital which was clothed by her panty and asked whether she had hair gro